995 F.

2d 521
125 Lab.Cas. P 57,397, 8 IER Cases 980

Raoul Eddie LILLY, Plaintiff-Appellant,

v.
OVERNITE TRANSPORTATION COMPANY, a Virginia
corporation,
doing business in the State of West Virginia,
Defendant-Appellee.
No. 91-2059.

United States Court of Appeals,

Fourth Circuit.
Argued Dec. 2, 1991.
Decided June 9, 1993.

Jerome J. McFadden, Gibson, McFadden & Ash, Princeton, WV, argued,

for plaintiff-appellant.
Michael Vance Matthews, Blakeney, Alexander & Machen, Charlotte,
NC, argued (W.T. Cranfill, Jr., Blakeney, Alexander & Machen,
Charlotte, NC, Wayne L. Evans, Katz, Kantor & Perkins, Bluefield, WV,
on brief), for defendant-appellee.
Before NIEMEYER, Circuit Judge, and BUTZNER and SPROUSE,
Senior Circuit Judges.
OPINION
SPROUSE, Senior Circuit Judge:

Raoul Eddie Lilly appeals from the district court's summary judgment order in
favor of Overnite Transportation Company on Lilly's claims against it for
wrongful discharge and breach of contract. We affirm on the breach of contract
claim but, based on the answer of the West Virginia Supreme Court of Appeals
to our certified question, we reverse the summary judgment on Lilly's claim for
wrongful discharge.

* Lilly filed his original complaint in the circuit court of Mercer County, West
Virginia, in June 1989. Shortly thereafter, Overnite removed the action to the
United States District Court for the Southern District of West Virginia based on
diversity jurisdiction. Lilly's amended complaint alleged wrongful discharge,
breach of contract, negligent administration of employment procedures, breach
of the covenant of good faith and fair dealing, and intentional infliction of
emotional distress. On Overnite's motion, the district court granted summary
judgment against Lilly on all his claims.

Lilly appealed only his claims for breach of contract and wrongful discharge.
After argument before this panel, we were of the opinion that the district court
had correctly granted summary judgment on the breach of contract claim. As
for the wrongful discharge claim, however, we issued an order of certification
because we believed that the claim concerned West Virginia's substantive law
on public policy and that the state supreme court had not addressed that issue as
it related to the facts of this case. The West Virginia Supreme Court of Appeals
has now responded to our certified question. Lilly v. Overnight Transp. Co.,
425 S.E.2d 214 (W.Va.1992). Based on its answer, we reverse the judgment of
the district court and remand for trial on the factual issues relating to whether
Lilly was wrongfully discharged.

II
4

We, of course, review the district court's summary judgment order de novo.
Moore v. Winebrenner, 927 F.2d 1312, 1313 (4th Cir.), cert. denied, --- U.S. ---, 112 S.Ct. 97, 116 L.Ed.2d 68 (1991). Summary judgment is appropriate if no
issue exists as to any material fact and the moving party is entitled to judgment
as a matter of law. Id. We draw any inferences in the light most favorable to the
nonmoving party. Id. So construed, the facts are as follows. Lilly was employed
by Overnite as a truck driver from November 17, 1972 until November 2, 1988.
On August 14, 1988, he was instructed to transport a load of veneer lumber
from Bluefield, West Virginia, to Norfolk, Virginia, where the lumber was to
be loaded onto a cargo ship and transported overseas. While testing the brakes
on the trailer containing the cargo, however, Lilly discovered that they were
defective. After an unsuccessful repair attempt by an Overnite mechanic, Lilly
decided not to take the lumber to Norfolk because the trailer was unsafe.

Lilly tried to telephone his supervisor, Dennis Cole, but was unable to reach
him. He ultimately contacted another Overnite manager in South Carolina, who
agreed that the truck should not leave the lot. Because of Lilly's failure to take
the lumber to Norfolk, the cargo ship left without it. When Cole learned that
Lilly had not delivered the lumber, he became angry. Lilly claims the incident

"caused trouble" for Cole at Overnite, and that Lilly's relationship with Cole
soured as a result of the incident.
6

On November 2, 1988, when Lilly was driving his truck on Interstate 77,
Overnite safety supervisor Donald Cole, the brother of Dennis Cole, used a
radar gun to clock Lilly's speed at 70 to 71 miles per hour. Donald Cole then
contacted Lilly by citizens band radio and ordered him to pull off the road at
the next safe exit. After Lilly exited, Donald Cole told him that he had been
speeding and fired him.

Lilly claims that at the time he was fired, his speedometer was not operating
properly. Three days before his discharge, on October 30, 1988, he had filed a
written report with Overnite stating that his speedometer was giving false
readings. The speedometer in his truck was attached to a recording device that
charted the speedometer's readings. At the time of the speeding, the chart
indicated that Lilly's speedometer read 68 miles per hour. Overnite's written
policy on speeding violations provided that any driver operating a truck at 70 or
more miles per hour would be fired; a driver going over 60 but under 70 miles
per hour would not be fired if it was his only offense within the past twelve
months. Lilly alleged that he had no previously recorded speeding violations.

III
8

We first address the breach of contract claim. * West Virginia law, absent
specific term provisions, presumes at-will employment. Wright v. Standard
Ultramarine & Color Co., 141 W.Va. 368, 90 S.E.2d 459, 468 (1955); Bell v.
South Penn Natural Gas Co., 135 W.Va. 25, 62 S.E.2d 285, 288 (1950).
However, in Cook v. Heck's, Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986), the
West Virginia Supreme Court of Appeals established an exception where the
employer has furnished the employee with a complete list of specific reasons
for discharge. Such circumstances constitute "prima facie evidence of an offer
for a unilateral contract of employment modifying the right of the employer to
discharge without cause." Id. 342 S.E.2d at 459. Lilly attempts to bring himself
within that exception, contending that Overnite's employment handbook created
such a unilateral contract. The district court correctly found, however, that the
facts of this case do not fall within the Cook exception. The handbook listed
"examples of misconduct which will not be tolerated," but Lilly made no
showing that the list was intended to be exclusive. Additionally, the handbook
contained the following language:

Nothing contained in this handbook or any other handbook, manual, paper

writing or other communication between the Company and employee shall be

construed as creating an express or implied contract of employment for a

definite or indefinite term. All persons hired as part-time, probationary, fulltime or regular employees shall have the right at any time to terminate their
employment with the Company. The Company shall have a comparable right at
all times to terminate employment of employees for any reason that does not
contravene applicable state or federal law.
10

The Company reserves the right at all times to alter, amend, add to, or revoke
any provision of this handbook on Safety and Operating Rules and Regulations,
as well any other handbook or manual it gives to employees.

11

The West Virginia Supreme Court of Appeals has ruled that such disclaimer
language completely precludes any viable claim for breach of contract. Reed v.
Sears, Roebuck & Co., 426 S.E.2d 539, 544-45 (W.Va.1992); Suter v. Harsco
Corp., 184 W.Va. 734, 403 S.E.2d 751, 754-55 (1991). The district court's
grant of summary judgment to Overnite on Lilly's breach of contract claim is
therefore affirmed.

IV
12

A consequence resulting from West Virginia's presumption of at-will

employment, of course, is that an employee normally may be discharged at the
will of the employer. Suter, 403 S.E.2d at 754; Wright, 90 S.E.2d at 468; Bell,
62 S.E.2d at 288. However, the state supreme court has stated:

13 rule giving the employer the absolute right to discharge an at will employee
[T]he
must be tempered by the ... principle that where the employer's motivation for the
discharge contravenes some substantial public policy principle, then the employer
may be liable to the employee for damages occasioned by the discharge.
14

Harless v. First Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270, 275
(1978). Relying on the Harless public policy exception, Lilly contends that
Overnite's proffered reasons for discharging him were pretextual. He asserts
that Overnite discharged him in retaliation for his refusal to drive a truck with
defective brakes loaded with lumber from Bluefield, West Virginia, to Norfolk,
Virginia. He argues that the discharge violated the public policy of West
Virginia, as evinced by W.Va.Code 17C-15-1(a) (prohibiting the driving of
any vehicle "which is in such unsafe condition as to endanger any person"),
17C-15-31 (providing brake equipment requirements), 24A-5-5(j)
(authorizing state Public Service Commission to promulgate safety regulations
for motor vehicles), and 10 W.Va.C.S.R. 150-9-2.3 (specifying brake
performance requirements).

15

Before we certified the question to the West Virginia Supreme Court of

Appeals, Overnite had contended that West Virginia had no public policy
against driving vehicles with inadequate brakes. The district court had granted
summary judgment on the wrongful discharge claim because "West Virginia
courts have yet to recognize a wrongful discharge cause of action under ... West
Virginia Code 17C-15-1 or West Virginia Code 17C-15-31." In responding
to our certified question, however, the West Virginia Supreme Court of Appeals
concluded that

16 legislature intended to establish a clear and unequivocal public policy that the
the
public should be protected against the substantial danger created by the operation of
a vehicle in such an unsafe condition as to endanger the public's safety. Thus, we
hold that a cause of action for wrongful discharge may exist under West Virginia
Code 17C-15-1(a), 17C-15-31 and 24A-5-5(j), where an employee is
discharged from employment in retaliation for refusing to operate a motor vehicle
with brakes that are in such an unsafe working condition that operation of the vehicle
would create a substantial danger to the safety of the public. Whether the nature of
the unsafe condition of a vehicle is sufficient to create a substantial danger to the
safety of the public is a factual determination. Clearly, however, where such
substantial danger is created, the Appellant's discharge from employment for
refusing to operate such a vehicle would certainly thwart a substantial public policy.
17

Lilly, 425 S.E.2d at 217 (footnote omitted).

18

In view of the above, the summary judgment of the district court on the
wrongful discharge claim is reversed and remanded for a trial on the factual
issues raised in that claim.

19

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Our Order of Certification stated, without elaboration, that we had determined

the district court's holding on the breach of contract claim to be correct. We
now incorporate our reasoning